Memorandum by the Standing Committee of
experts on internation immigration, refugees and criminal law
(the Meijers Committee)
In response to your call for evidence on the
functioning of Frontex, the Standing Committee of experts on international
immigration, refugees and criminal law ("the Standing Committee")
would like to draw your attention to a number of concerns regarding
operations of sea border controls coordinated by Frontex in the
recent past which the Standing Committee put forward earlier to
the European Parliament and Dutch Parliament. This is a synopsis
of letters sent to these Parliaments. You find attached the letter
and memorandum sent to the European Parliament in October 2006.
(Annex 1 and 2) The Standing Committee is worried in particular
about measures of pre-border control coordinated by Frontex which
have the potential to jeopardize access to protection of those
who according to international law are entitled to protection.
The Standing Committee observes that the current institutional
and legal embedding of Frontex does not properly address the issue
of mixed flows of migrants, practices of pre-border controls and
operational cooperation with third countries.
FRONTEX ACTIVITIES:
REFUGEE CONCERNS
Under the header of operations Hera-II and Hera-III,
started in May 2006, Frontex coordinated operations of sea border
control carried out by several Member States in sea areas surrounding
the Canary Islands. Part of these operations took place in the
territorial waters of third countries and in close collaboration
with third countries (Senegal and Mauritania) and were targeted
at the prevention of departure of migrants towards the Canary
Islands and at intercepting and sending back migrants before they
left the territorial waters of the African States. According to
statistics released by Frontex, in the period August-December
2006, 3.887 immigrants were intercepted and denied further passage
towards the Canary Islands. In the course of the recent operation
Nautilus coordinated by Frontex in the Central Mediterranean (June-July
2007), search and rescue missions also extended to Libyan territorial
waters. According to several accounts, migrants intercepted in
Libyan waters have been sent back to Libya without a prior screening
procedure or determination of the identity of migrants.[21]
The Standing Committee would like to point out
that it cannot be ruled out beforehand that refugees who are entitled
to protection according to international and community law are
also subject to these intercepting measures. It is not guaranteed
that refugees or other persons entitled to protection returned
to African ports receive appropriate protection in the third countries
with which EU Member States, coordinated by Frontex, cooperate.[22]
The Standing Committee is worried, in particular, that an increase
of operations of pre-border control—in intensity and/or
geographical proliferation—could sincerely jeopardize access
to international protection for refugees and would deprive the
right to asylum as provided for in EC asylum legislation of its
practical meaning, since a situation is created whereby all migrants,
including refugees, are effectively denied access to the territory
of the European Union.
Member States taking part in pre-border control
operations apparently operate under the premise that migrants
still within the territorial waters of third countries fall under
the exclusive responsibility of third countries. This is also
the premise underlying the (partly public accessible) Operations
Plan Hera III, drawn up by Frontex, according to which the following
actions should be taken to fulfill the operation objectives [paragraph
19.1]:
"— Carry out an optimal maritime
and aerial surveillance of the waters close to Mauritania and
Senegal, with the authorization of the Mauritanian and Senegalese
authorities, carrying onboard the E.U. vessels personnel from
these countries that are the responsible of the operations and
are the people that must send back the immigrants to the national
authorities in the coast.
— Avoid the departure of the illegal
immigrants towards the Canary Islands and in the case of the departure,
intercept the small boats and return the immigrants to the national
authorities."
The Standing Committee would like to point out
that EU Member States participating in such operations may be
equally accountable under international law for possible human
rights violations ensuing from these operations. It can be inferred
from the international legal regime on State responsibility for
acts taken in conjunction with other States and doctrine on the
extra-territorial assertion of jurisdiction that States may remain
responsible for human rights violations which are the result of
acts taking place extra-territorially and/or of concerted actions
with other States.[23]
In the attached document, a legal analysis is presented of applicable
Community legislation regarding refusal of entry at the EU's external
borders (especially Article 13 Schengen Borders Code) and relevant
international instruments (the prohibition of refoulement as enshrined
in Article 33(1) Refugee Convention and Article 3 ECHR); which
raise serious concerns about the legality of the modus operandi
of the operations described above. In sum, the Standing Committee
is of the opinion that the physical transfer of border controls
towards the high seas or territorial waters of third countries
may not be used as a means to circumvent international obligations
or norms laid down in Community law regarding border controls
and asylum applications lodged at the border or within the territories
of EU Member States. The Standing Committee regrets that the strategy
of pre-border controls is increasingly used without an accompanying
legal and operational framework which pays due account to international
and community law on asylum. This accompanying framework should
in particular address the issue of effective monitoring mechanisms
regarding compliance of third States with international human
rights and refugee law; specific consideration for persons in
need of international protection at the operational level of border
management; and an explicit guarantee that all border controls[24],
ensure access to the asylum procedure for those who apply for
asylum, in accordance with the Dublin regulation (Article 3(1))
and the procedures directive 2005/85/EC, irrespective of whether
the border controls are employed unilaterally, under the coordination
of Frontex, or in conjunction with third states; and irrespective
of where they are carried out.
FRONTEX ACTIVITIES:
ACCOUNTABILITY CONCERNS
Search and rescue missions and operations of
pre-border control go beyond traditional concepts of border management
and should only be applied within an appropriate institutional
framework ensuring accountability and democratic control. According
to the regulation establishing Frontex (Reg. 2007/2004), an annual
activity report has to be made public and a work programme for
the coming year has to be forwarded to the European Parliament,
the Council and the Commission, which has to be adopted according
to the annual Community budgetary procedure. Regular supervising
over Frontex activities takes places within the Management Board
of Frontex, in which each participating Member State appoints
a representative on the basis of their degree of high level relevant
experience and expertise in the field of operational cooperation
on border management. As of December 2006, a vast majority of
members of the Board are high ranking officials from national
border guards and the aliens police, without necessarily having
a legal or asylum expertise.[25]
The Standing Committee observes that although the European Parliament
may invite the Executive Director of the Agency to report on the
carrying out of his/her tasks (Article 25(2) Regulation 2007/2004),
an institutionalised mechanism of prompt democratic oversight
over operational activities of Frontex is non-existent and the
one-sided composition of the Management Board may turn out not
to be instrumental for the set up of protection-sensitive border
management strategies or for ensuring appropriate scrutiny of
the legality of proposed or ongoing operations, for example regarding
the drafting of operational plans or the conclusion of working
agreements with third countries.
In sum, the Standing Committee signals the following
deficiencies with regard to current Frontex activities:
— There is currently no adequate legal,
nor operational framework at Community level for conducting border
policies targeted at mixed migratory flows of illegal migrants
and asylum seekers which guarantees access to international protection
for those entitled to protection (paragraph 3, Annex VI Schengen
Borders Code remains silent on the matter).
— There is currently no adequate legal,
nor operational framework at Community level laying down under
which conditions (taking account of human rights obligations)
cooperation with third countries regarding border controls may
take place.
— There is currently no adequate mechanism
of democratic accountability on Community level which ensures
a pro-active scrutiny and/or a prompt reactive scrutiny of individual
operations coordinated by Frontex.
The Standing Committee takes great interest
in the House of Lords inquiry into Frontex and is prepared to
provide the House with further information on this subject.
Prof. dr. C.A. Groenendijk
Chairman
5 September 2007
21 See eg Migration News Sheet, Migration Policy
Group, Brussels, July 2007, pp. 11-13. Back
22
This is especially so for Libya, but it is notable that neither
Frontex, nor the European Commission or Member States taking part
in these border controls have made an assessment of the refugee
protection regime in other African States cooperating with the
EU in taking in intercepted migrants. Back
23
See in particular Articles 8 ("conduct directed or controlled
by a State") and Article 16 ("Aid or assistance in the
commission of an internationally wrongful act") of the Articles
on State Responsibility; on extra-territorial responsibility for
intercepting measures taken at sea, see in particular ECtHR 11
January 2001, Xhavara a.o. v Italy and Albania, Appl. 39473/98. Back
24
Functionally defined in the Schengen Borders Code as activities
carried out in response to an intention to cross or the act of
crossing that border for the purpose of preventing unauthorised
entry; see Article 2(9) Reg. 562/2006. Back
25
Frontex Annual Report 2006, pp. 25-26. Back
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